Tag Archives: Discrimination

Racism, Human Rights and Policing Wrongs

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Dr Iyiola Solanke

April 22nd 2013 marked the 20th anniversary of the murder of Stephen Lawrence. His life and brutal death remains an important watershed for the pursuit of racial equality in Britain, especially via the use of anti-racial discrimination law. The murder by a gang of racist thugs of a young, well educated black man who planned to become an architect touched the nation and triggered a new era in legislative action. The determined campaign of a devastated family led to the MacPherson Report which gave formal recognition to the idea of institutional racism. The acknowledgment of this idea changed the way in which law tackled racial discrimination – it lead to the introduction of a ‘public sector equality duty’ (PSED) which placed an obligation upon public authorities to promote racial equality and foster good race relations.  The last Labour government saw fit to extend this duty from race to all protected characteristics listed in Section 1 of the Equality Act 2010; last year, however, Conservative Home Minister Theresa May launched a consultation to consider its removal. Perhaps she thinks it is unnecessary? Continue reading →

Union Citizenship comes of age: Case C-46/12, LN v Styrelsen for Videregaende Uddannelser og Uddannelsesstotte

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Dr Iyiola Solanke

It is perhaps fitting that in 2013, 21 years after it was introduced in the Treaty of Maastricht, Union citizenship appears to have come of age. Although described in Grzelczyk as the ‘fundamental status of nationals of the member states’ the privileges of this status have to date primarily been enjoyed only when nationals left their member state. It complemented national citizenship rather than existed alongside it. The only exception to this rule was seen in the recent Zambrano case, where AG Sharpston suggested that stationary Union citizens should enjoy rights as well as migrant EU citizens. The Court did not affirm this reasoning in its decision but did find that the baby Zambrano citizens should not be deprived of the ‘genuine enjoyment’ of EU citizenship in their member state of birth. The Third Chamber of the CJ has now affirmed the idea that Union citizenship can be enjoyed at home. This significant shift in EU citizenship law was announced in a short judgement revolving around Mr N, a young man who was refused education finance in Denmark, a social advantage that has been considered by the Luxembourg court many times.  Continue reading →

Case Comment: AG’s Opinion in Giersch & Others (C-20/12)

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Michèle Finck, University of Oxford

The reference for a preliminary ruling brought by the Administrative Court of Luxembourg in the Elodie Giersch matter essentially concerns the question of whether a recent Luxembourg law that makes funding of higher education studies conditional upon residence in Luxembourg is compatible with European Union law, more specifically the requirement of non-discrimination on the basis of nationality. The aid can be received for studies undertaken within Luxembourg but also anywhere else.

The law is particularly controversial as it excludes from its benefit the children of frontier workers who travel every day from Belgium, Germany and France to the Grand Duchy to work. Currently, around 44% of those employed in Luxembourg are frontier workers. Over 600 applicants had brought proceedings before the national court after they had been refused financial aid. They argued that the fact that they were treated differently from the children of workers residing in Luxembourg constitutes an infringement of the principle of free movement of persons. Continue reading →

Gender Quotas on Corporate Boards

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Julie Suk

This piece originally appeared on europaeuslaw and is reposted here with permission and thanks.

This week, the European Commission unveiled its proposal for an EU directive on gender balance on corporate boards.  Gender balance means that women must constitute at least 40 percent, and not more than 60 percent, of the board to which the requirement applies.  Over the last few years, there has been a robust debate about the importance of women’s participation in economic decisionmaking, catalyzed in part by Norway’s success in requiring gender balance on the corporate boards of its publicly traded companies.  Supporters of measures to achieve gender balance have focused on the importance of gender equality to the good governance of well-functioning legitimate institutions, including corporations.  Studies cited by the Commission in its proposal claim that women’s participation in leadership improves companies’ economic performance and growth.

Several member states have passed legislation imposing gender quotas on corporate boards in the last several years (Spain, Italy, Belgium, the Netherlands, and France), or are in the process of doing so (Germany).  However, some of these countries have joined the UK in opposing EU action in this field.  The sticking point is sanctions:  The recently adopted gender quotas laws in various jurisdictions impose a range of sanctions for boards that fail to comply.  None of the EU member states have followed the Norwegian model of dissolving companies by court order should they fail to reach gender parity.  In France, the law provides for the invalidation of any nomination of a board director if appointing the candidate would cause the board to exceed 60 percent of one gender.  Continue reading →

Company Boards and Thwarted Quotas: the Glacial Pace of Change

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Aileen McColgan

Women hold fewer than one in seven seats on the boards of the largest listed public companies across the European Union.[1] In Norway, where a 40% quota has been in force for some time, they account for 42% of Board positions. And in France, which introduced quotas in January 2011, the proportion of women on Boards increased from 12% to 22% in a single year.[2]

Viviane Reding, vice president of the European Commission, has been spearheading efforts to introduce quotas at EU level for women on Boards, explaining in an article in the New York Times on 10 October 2012 that “I tried first with persuasion… Voluntary measures have not achieved any progress, and if we continue at that pace we will need 40 or 50 years.”[3]

It was being reported in early September 2012 that the Commission was to propose mandatory quotas of 40% women in non executive director positions by 2018 in publicly owned companies, 2020 in private companies employing at least 250 people or with a revenue of €50 million.[4] Enforcement would be by fines and/or exclusion from public contract. Reding was quoted in the New York Times stating that quotas would not be enforced in the absence of suitably qualified women but that a list of over 7,000 ‘board-ready’ women had been drawn up by European business schools and others. Britain, in which women currently account for a record 16% (just under one in six) of FTSE 100 boards,[5] and 2.5% of FTSE 100 chief executive positions, was reported to be leading the opposition. Continue reading →

Come Fly With Me – Age Discrimination and Objective Justification

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Andrew Smith

Prigge & Ors v Deutsche Lufthansa AG (C-447/09) is the latest in a line of CJEU cases dealing with the question of whether the application of a default retirement age (“DRA”) constitutes unlawful age discrimination, contrary to the Directive on Equal Treatment in Employment and Occupation (2000/78/EC). In the domestic context, the national DRA was abolished with effect from 6 April 2011 (see The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 for details of the transitional provisions).  Under UK law, direct discrimination “because of” age is the only form of prohibited direct discrimination which may be justified by an employer. Section 13 (2) of the Equality Act 2010 provides that “If the protected characteristic is age, A does not [directly] discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim”.  Accordingly, the approach adopted by the CJEU in cases such as Prigge is of particular relevance to workers, employers and advisers grappling with the issue of “objective justification” in the context of direct age discrimination.

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